MAHENDRA PRASAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS is an application under Section 482 of the Code of Criminal Procedure (hereinafter referred to as, 'the Code') for quashing entire criminal prosecution pending against the petitioner in Nauhatta P. S. case No. 38 of 1992 registered under Section 7 of the Essential Commodities Act (hereinafter referred to as, the Act') for violation of provisions of Bihar Trade Articles (Licences Unification) Order, 1984 (hereinafter referred to as, the Unification Order).

(2.) THE petitioner is, admittedly, a dealer under Public Distribution System. His shop was searched by Shri Lal Babu Singh, Deputy Collector (Probation) Sasaram, who reportedly found several irregularities and illegalities and seized the register and lodged first information report on the basis of which Nauhatta P. S. case No. 38 of 1992 under Section 7 of the Essential Commodities Act was registered against the petitioner. Though in the application under Section 482 of the Criminal Procedure Code, several points, including exemption from prosecution was raised, but at the time of hearing the learned advocate for the petitioner drooped other grounds except that the officer, i.e. Deputy Collector (Probation) conducting the search and making the seizure had no power to do so under clause 30 of the Unification Order.

(3.) UNDER clause 30 of the Unification Order, the power of search can only be exercised by the officers mentioned in clause 30 and Deputy Collector (Probation) is not included among the officers so empowered. If any other officer not so empowered exercises this power, whole exercise will be futile and bad in law and action initiated on the basis of such illegal search or seizure will also consequently be void abinitio. The Division Bench of Patna High Court in the case of Ram Chandra Panseri vs. State of Bihar, reported at 1988 P.L.J.R., 623, considered this aspect of the matter and held that search and seizure being foundation of the subsequent action i.e., launching prosecution in that case would be bad and, accordingly, criminal prosecution was quashed. In Kahaiya Sah Vs. State of Bihar, reported at 1990 (1) P. L. J. R. 716, it was held that search and seizure made by an officer, without jurisdiction, can not form basis of initiation of a prosecution, as he was not one of officers mentioned in clause 30 of the Unification Order nor there is anything on record to indicate that he has been empowered by the Government to conduct such search and make seizure. Hence, On this ground the Criminal prosecution order taking cognizance of case against the petitioner on the basis of such search and seizure cannot be sustained. In that Case also order of cognizance and prosecution was quashed.